Citation Nr: 0201758
Decision Date: 02/22/02 Archive Date: 02/25/02
DOCKET NO. 97-32 500A ) DATE
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THE ISSUE
Whether the August 1996 decision of the Board of Veterans'
Appeals (Board) -- which determined that the February 1977
rating decision that denied a rating higher than 10 percent
for de Quervain's disease of the right wrist did not
constitute clear and unmistakable error (CUE) -- was clearly
and unmistakably erroneous.
REPRESENTATION
Moving party represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Counsel
INTRODUCTION
The veteran had active service from September 1971 to May
1976, and had eight years, two months, and 16 days of active
service prior to September 14, 1971.
In an August 1996 decision, the Board determined that a
February 1977 rating decision in which a regional office
assigned a rating of 10 percent for de Quervain's disease of
the right wrist with radial sensory neuroma did not
constitute clear and unmistakable error. In December 1999,
the veteran claimed that the Board's August 1996 decision was
clearly and unmistakably erroneous.
In an April 2000 decision, the Board concluded that the
motion for revision or reversal of the Board's August 1996
decision did not contain sufficient allegations of CUE. The
Board therefore denied the motion.
The veteran appealed the Board's April 2000 decision to the
United States Court of Appeals for Veterans Claims (Court).
By an Order dated in December 2000, the Court granted a joint
motion to vacate the Board's April 2000 decision and remanded
this matter to the Board. The motion granted by the Court
noted that, in its April 2000 decision, the Board relied, in
part, on the former provisions of 38 C.F.R. § 20.1404(b).
The motion added that the regulation was invalidated by
Disabled American Veterans v. Gober, 234 F.3d 682 (2000), in
which it was held that the rule was invalid because, when
read in conjunction with 38 C.F.R. § 20.1409(c), it operated
to prevent Board review of certain CUE claims, contrary to
the requirement of 38 U.S.C.A. § 7111(e) that a CUE claim was
to be decided by the Board on the merits.
FINDINGS OF FACT
1. A February 1977 rating decision assigned a 10 percent
rating for de Quervain's disease of the right wrist,
complicated by infection with secondary hypertrophic scarring
over the abductor longus with radial sensory neuroma.
2. By a March 1977 letter, the veteran was notified of the
10 percent rating assigned in February 1977; he did not
appeal.
3. The facts of this case, as known at the time of the
February 1977 rating decision, indicated that the veteran was
treated during his service for de Quervain's disease in the
right wrist by surgical release of the tendon sheath, and
developed a post-surgical infection which resulted in a
radial sensory neuroma, which when operated upon, also
developed an infection which ultimately required resection of
the sensory branch of the radial nerve in the proximal
forearm, which post-operatively also developed an infection.
4. In an August 1996 decision, the Board found that the
failure to award a rating in excess of 10 percent for
disability associated with de Quervain's disease, including
scarring and postoperative residuals of a radial sensory
neuroma, was consistent the facts known at the time of the
1977 rating decision and with governing regulations and
policy in effect at the time and that obvious error had not
been shown.
5. The record, as constituted at the time of the Board's
August 1996 decision, does not show that the February 1977
rating decision which awarded the 10 percent rating for right
arm disability disregarded some material fact which was then
known, or that it failed to apply or misapplied the law or
regulations then in effect.
6. The record, as constituted at the time of the Board's
August 1996 decision, does not show that the Board's
decision, in which it determined that the February 1977
rating decision did not constitute clear and unmistakable
error, disregarded some material fact which was then known,
or that it failed to apply or misapplied the law or
regulations then in effect.
CONCLUSION OF LAW
The Board's August 1996 decision -- in which it determined
that a February 1977 rating decision which assigned a 10
percent rating for de Quervain's disease of the right wrist,
complicated by infection with secondary hypertrophic scarring
over the abductor longus and post-operative residuals of
radial sensory neuroma did not constitute clear and
unmistakable error -- was not clearly and unmistakably
erroneous. 38 U.S.C.A. § 7111 (West 1991 & Supp 2001);
38 C.F.R. § 3.105 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records show that the veteran was treated in
June 1974 for symptoms of right hand weakness. In July 1974,
his complaints of right wrist pain were diagnosed as rule out
tendonitis. After conservative treatment and immobilization
with a cast produced no improvement, he underwent surgery for
surgical excision of the tendon sheath of the extensor
pollicis longus. Post-operatively, the wound became infected
and the veteran developed a radial sensory neuroma. The
neuroma was excised in May 1975, but the veteran's right hand
and wrist symptoms persisted. As a result, the veteran
underwent a surgical excision of the radial sensory nerve at
the proximal forearm in November 1975. The wound from that
operation became infected.
When he was examined by a medical evaluation board, he had a
two-inch hypertrophic scar over the right proximal forearm.
He had a Z-type scar on the distal forearm. Range of motion
in elbow was full and without discomfort. He had slight
limitation of motion and accompanying pain in his right
wrist. He also had some sensitivity to palpation over the
scar of the abductor longus of the right hand.
At the time of his medical examination for separation from
service, an examiner noted that the veteran had had de
Quervain's disease complicated by an infection with secondary
hypertrophic scarring over the adductor longus, and radial
sensory neuroma. Clinically, the veteran had limited motion
in his right wrist. The wrist area was sensitive to touch.
There was keloid on the forearm. There were neuromas on the
wrist and forearm. There was loss of sensation in the thumb
and the dorsum of the forefinger. The reported diagnosis was
de Quervain's disease of the right wrist complicated by
infection with secondary hypertrophic scarring over the
"adductor" longus, after treatment of radial sensory
neuroma.
Based on the service medical records contained in the claims
folder at the time, in a February 1977 rating decision, the
veteran was granted entitlement to service connection for de
Quervain's disease of the right wrist complicated by
infection with secondary hypertrophic scarring over the
adductor longus, and radial sensory neuroma. The associated
disability was rated 10 percent. The RO utilized Diagnostic
Code 5204 which rates disability from tendosynovitis based on
limitation of motion of the affected joint.
The veteran did not appeal the February 1977 rating decision.
In February 1994, the veteran filed a claim in which he
asserted that the February 1977 rating decision was erroneous
because it did not consider or compensate for nerve damage
associated with his service connected disability.
The Board determined in August 1996 that the February 1977
rating decision, which assigned a 10 percent disability
evaluation for the veteran's service-connected de Quervain's
disease of the right wrist complicated by infection with
secondary hypertrophic scarring over the abductor longus, and
radial sensory neuroma, was not clearly and unmistakably
erroneous. The veteran now contends that the Board's August
1996 decision is clearly and unmistakably erroneous.
In an April 2000 decision, the Board determined that its
August 1996 decision was not clearly and unmistakably
erroneous. The veteran appealed from that decision to the
United States Court of Appeals for Veterans Claims (Court).
By an Order dated in January 2001, the Court granted a joint
motion to vacate the Board's April 2000 decision and remanded
this matter to the Board.
II. Discussion
This case presents a complicated procedural situation. In
this decision, the Board must answer the question whether its
August 1996 decision contained clear and unmistakable error
(CUE).
To warrant revision of a Board decision on the grounds of
CUE, there must have been an error in the Board's
adjudication of the appeal which, had it not been made, would
have manifestly changed the outcome when it was made. If it
is not absolutely clear that a different outcome would have
ensued, the error complained of cannot be clear and
unmistakable. 38 C.F.R. § 20.1403(c) (2001).
Examples of situations that are not clear and unmistakable
error include:
1. Changed diagnosis. A new medical
diagnosis that "corrects" an earlier
diagnosis considered in a Board decision.
2. Duty to Assist. The Secretary's
failure to fulfill the duty to assist.
3. Evaluation of the evidence. A
disagreement as to how the facts were
weighed or evaluated.
38 C.F.R. § 20.1403(d) (2001).
CUE does not include the otherwise correct application of the
statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of
the statute. 38 C.F.R. § 20.1403(e) (2001).
In its August 1996 decision, the Board concluded that a
February 1977 rating decision -- which assigned an initial 10
percent disability evaluation for de Quervain's disease of
the right wrist complicated by infection with secondary
hypertrophic scarring over the adductor longus, and radial
sensory neuroma -- was not clearly and unmistakable
erroneous.
Thus, to answer the question at issue, the Board must
determine whether the Board in August 1996 correctly applied
the law in effect at that time concerning determinations of
clear and unmistakable error. The law then in effect,
38 C.F.R. § 3.105(a), provides that previous final and
binding determination of VA, including a decision on degree
of disability, will be accepted as correct in the absence of
clear and unmistakable error.
The standard with respect to raising a claim for CUE is that
it must be "the kind of error, of fact or of law, that when
called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error." Fugo v. Brown, 6 Vet. App. 40 (1993).
CUE requires more than a disagreement on how the facts are
weighed or evaluated. The appellant must show that the
correct facts, as they were known at the time, were not
before the adjudicator or that pertinent regulatory or
statutory provisions were incorrectly applied. See Russell
v. Principi, 3 Vet. App. 310, 313 (1992).
In order for a CUE claim to be sustained, the appellant must
allege with some specificity what the alleged error is, and,
unless it is patently clear and unmistakable, the appellant
must provide persuasive reasons as to why the result would
have been manifestly different but for the alleged error.
Bielby v. Brown, 7 Vet. App. 260, 269 (1994); Fugo v. Brown,
6 Vet. App. 40, 44 (1993); see Eddy v. Brown, 9 Vet. App. 52;
57 (1996).
Thus, the question before the Board in 1996 was whether the
RO, in assigning the initial disability evaluation in 1977,
did not have the correct facts, as they were known at the
time, before the adjudicator or that pertinent regulatory or
statutory provisions then in effect were incorrectly applied
by the RO.
The essence of the veteran's contentions has been that he
should have been awarded a separate compensable rating for
disability associated with right radial nerve paralysis in
addition to his disability from tenosynovitis in his right
wrist. The Board considered this assertion in 1996 but
determined that the February 1977 decision had considered and
denied the claim for a separated but related disability and
was not clearly and unmistakably erroneous on that basis.
More generally, the gist of the veteran's contentions is the
assertion that the Board's August 1996 decision was clearly
and unmistakably erroneous because it did not reverse or
modify the February 1977 rating decision which, according to
the veteran, was clearly and unmistakably erroneous.
However, the veteran has not alluded to any unconsidered fact
known at the time of the February 1977 rating decision or the
Board's August 1996 decision which, if known by the Board in
August 1996, would have compelled the Board to conclude that
the February 1977 rating decision would have been manifestly
different if such fact were known. Nor has the veteran
alleged any misapplication by the VA regional office in
February 1977, or by the Board in August 1996, of the law or
regulations which were in effect at the time of such
decisions. Rather, the veteran appears to contest the
evaluation of the evidence by the RO.
The Board has carefully and thoroughly reviewed the record
and the February 1977 rating decision that assigned a 10
percent rating for disability associated with de Quervain's
disease complicated by infection, with secondary hypertrophic
scarring over the abductor longus and radial sensory
deficits. The facts, as known at the time, have been set out
above.
It must be emphasized that the issue now before the Board is
not whether the rating assigned in February 1977 is clearly
and unmistakable erroneous. Rather, the issue now before the
Board is whether the Board's August 1996 decision was clearly
and unmistakable erroneous in concluding that there was no
clear and unmistakable error in the February 1977 rating
decision. To overturn the February 1977 decision by this
route is a formidable task at which the veteran does not
succeed.
The veteran does not show that the Board, in 1996,
incorrectly applied the law then in effect or that the facts
known in 1996 about the 1977 rating decision were not then
before the Board.
As shown in 1996 and currently, the RO in its February 1977
rating decision correctly paraphrased the facts as then
known, and correctly cited and applied the pertinent law and
regulations then in effect. There is no indication from the
record available in 1977 that the RO did not consider any
known fact, or that any law or regulation was either not
applied or misapplied.
In 1977, the RO rated the veteran's disability from de
Quervains's disease of the right wrist, complicated by
infection with secondary hypertrophic scarring over the
abductor longus and radial sensory neuroma utilizing
Diagnostic Code 5024 and 5003. At that time, Diagnostic Code
5024 provided tenosynovitis will be rated on limitation of
motion of the affected parts, as degenerative arthritis.
In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5003
read as follows:
Degenerative arthritis established by X-
ray findings was rated on the basis of
limitation of motion under the
appropriate diagnostic codes for the
specific joint involved. Where however,
the limitation of the specific joint
involved is noncompensable under the
appropriate diagnostic codes, a rating of
10 percent is for application for each
such major joint or group of minor joints
affected by limitation of motion, to be
combined, not added under Diagnostic Code
5003. Limitation of motion must be
objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory
evidence of painful motion.
The Board now finds that its August 1996 decision is not
clearly and unmistakably erroneous in concluding that the
1977 rating decision did not contain clear and unmistakable
error. The Board's August 1996 decision contains findings of
fact and conclusions of law based on such findings. The
Board's August 1996 decision contains a discussion of the law
concerning CUE and adequate reasons and bases for the
conclusion that the February 1977 rating decision was not
clearly and unmistakably erroneous.
The veteran seems to assert in his December 1999 motion that
the Board's August 1996 decision was based on an erroneous
finding of fact, as the Board's first finding of fact
contained no reference to resection of the radial sensory
nerve. However, as the veteran points out, the Board's
discussion of the reasons and bases for its decision clearly
shows that the fact that the veteran underwent resection of
the radial nerve was known to the Board and the post-
operative residual disabilities were considered in its
findings and conclusions.
The veteran's June 1998 and December 1999 motions, as well as
his other statements, fail to provide any fact, known at the
time of the Board's August 1996 decision, that was not
considered by the Board and that, if considered, would have
compelled a finding that the February 1977 rating decision
was clearly erroneous. The veteran has repeatedly asserted
that he had service-connected disability in February 1977
from loss of sensory function associated with resection of
the radial sensory nerve. This fact was documented in his
service medical records, was known to the Board, and was
discussed in its August 1996 decision. No other error of
fact has been alleged by the veteran in support of his CUE
claim. Similarly, the veteran has not shown how the several
regulations to which he has cited were misapplied in the
February 1977 rating decision or by the Board in its August
1996 decision. In short, he has cited several regulations,
but did not allege how they were misapplied.
In conclusion, CUE is a very specific and rare kind of error,
of fact or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error. Generally, either the correct
facts, as they were known at the time, were not before the
Board, or the statutory or regulatory provisions extant at
that time were incorrectly applied. 38 C.F.R. § 20.1403(a)
(2001).
In summary, the record fails to show an error of fact or
misapplication of law in the Board's August 1996 decision
that would compel a different result but for such errors.
The Board concludes that such decision is not clearly and
unmistakably erroneous.
ORDER
The August 1996 decision -- in which the Board determined
that the February 1977 rating decision that assigned an
evaluation of 10 percent for the veteran's service-connected
disability of the right forearm, wrist, and hand disorders
was not clearly an unmistakably erroneous -- should not be
revised or reversed on the grounds of clear and unmistakable
error by the Board. The motion is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals